Archive for the ‘Absence’ Category

Deficiency Judgments: Exactly Where Could They Be?

Friday, September 30th, 2011

Homeowners facing foreclosure are frequently concerned that the auction of their property won’t be the end of their financial and legal worries. The threat of a deficiency judgment being initiated by the lender right after the sheriff sale is often becoming raised by foreclosure consultants, attorneys, and representatives of the bank attempting to wring a lot more cash out of borrowers. But acquiring actual instances of deficiency judgments against the average homeowner is often very hard.

Is this an indication that banks aren’t pursuing , or is it merely that these types of lawsuits are so rarely mentioned? Finding actual statistics relating to this type of lawsuit is hard, and proving that they are rare may be even more attempting, as it can be almost impossible to prove a negative. The absence of judgments against homeowners does not mean that they are in no way brought; after all, maybe each and every foreclosure victim defends the case and wins. Or these lawsuits are just rarely talked about. Or maybe former homeowners have deficiency judgments against them but, due to the fact they moved out of the residence where paperwork was served, they’re not even conscious of it.

So discovering evidence of deficiency judgments right after foreclosure isn’t uncomplicated. Not for me, and seemingly not for other researchers on the net. Frank Llosa from FranklyRealty.com also wonders where these lawsuits are and comes to a few of the exact same conclusions as we have, although he approaches it from the angle of banks bidding on properties at auction for the total quantity due on the loan, thereby eliminating the possibility of a deficiency: “Why would they take over the property at $200,000 OVER what is it worth and let the previous owner be releaved [sic] from further obligations?”1

He suspects that the missing lawsuits might be an indication of the fact that foreclosing lenders, “figure it can be a waste of time and effort for the banks to go right after the homeowner given that they’re broke.”1 This is a lot the exact same seemingly reasonable remedy that I’ve raised before; right after all, why would a lender, who has been thus far unable to collect on a foreclosure judgment, spend more time and money pursuing deficiency judgments against former clients?

The Florida Asset Protection Weblog also mentions the possibility of deficiency judgments in cases where a second mortgage is present, but admits no individual encounter with such lawsuits: “I have not observed any case to date where a first or a second mortgage lender has sued the homeowner personally.”2 Very same here, and these , in the states and under the conditions in which they’re allowed, have thus far proven to be unused weapons, comparable in volume of enforcement to jaywalking violations.

Taking a appear by means of actions within the local courthouse is also a bit of a wild goose chase, as you will find far more foreclosures than deficiency judgments. In truth, you will discover no deficiency judgment circumstances that I could find listed in my nearby court technique. And this is in a state with a fast method and such lawsuits are allowed right after the sheriff sale. Dozens of foreclosure circumstances, both open and closed, are listed, but no deficiency judgment circumstances involving the same defendants as the foreclosure instances in any of the listings I could uncover.

And on the net, instances of this type of lawsuit can most often be identified in estate cases and auto loan repossessions, but not genuine estate foreclosures. Obviously, this makes more sense, because somebody who loses a auto can nonetheless be served with lawsuit paperwork at a present address, auto loan outlets have far more access to nearby courts, plus the smaller amount of an auto loan deficiency may possibly be reasonably expected to be paid back.

Since it appears that deficiency judgments for the duration of foreclosure are really rare, why are lenders not pursuing them right now? As has been discussed here just before, it really is generally just not worth the bank’s time to sue people who admittedly have small money. About.com states that, “In many cases, your lender will not go towards the trouble. Legal action is pricey and time consuming, and people who just suffered a foreclosure typically do not have the assets or income required to satisfy a deficiency judgment.”3 Individuals with no job, assets, or not sufficient income may well also be “judgment proof,” meaning that, even if the bank got the deficiency judgment, it could not be enforced or collected.

And when families are made homeless as a result of the actions of the bank, it may be difficult to get a legitimate judgment against people today who can not be reasonably located to be served with court documents. Few former homeowners leave a forwarding address when the move out of a property just before eviction, being totally conscious of the truth that their lives would be a lot simpler without further correspondence from the mortgage organization. Due to the fact the bank suing for the deficiency is certainly also responsible for the fact that the defendants may possibly not have a present address, former homeowners later claiming the lawsuit was never ever effectively served isn’t a challenging argument to make.

Also, an crucial point for homeowners to keep in mind is that, if they put down less than 20% of the buy price, they are in all probability paying Private Mortgage Insurance (PMI). Even though the homeowners themselves pay the PMI premium on a monthly basis, this sort of policy insures the bank against the default of the loan, and if an owner goes into foreclosure, the insurance will pay the bank the amount of the mortgage left unpaid. Therefore, if a mortgage is covered with PMI, the bank can collect the insurance on the policy they forced on the borrowers instead of seek a deficiency judgment. Citifinancial itself states that, “If you’ve got Private mortgage insurance, a lender can use this cash to offset any losses as an alternative to receiving a deficiency judgment.”4

Now, investors and second property owners who’ve substantial assets might be at greater risk of becoming sued than initial homeowners. But this can be a really current 2008 development. Robert Levin from Fannie Mae, announcing changes in the first quarter of 2008, stated that, “We are pursuing deficiency judgment against investors and second home borrowers.”5 Will this be the case in all second residence or investment residence foreclosures by Fannie Mae? Only time will tell, but there is still little evidence that any deficiency judgments have been pursued thus far, along with the nationalization of the mortgage giants will probably change this plan.

The truth is, using the nationalization of the banking technique along with the Government Sponsored Enterprises, it truly is extremely unlikely that any borrower whose loan which is taken over by the government might be subject to a deficiency judgment lawsuit. Rather, the politicians, to be able to soften the backlash against the $700 billion bank bailout and to reassure constituents, will push much harder for loan balance writedowns, interest rate adjustments, and other to make mortgage a lot more economical for borrowers.

So, it seems that deficiency judgments have been and will stay rather rare in the mortgage industry. Having extenuating circumstances (a lot of land, many liquid assets, clear evidence of mortgage fraud) may well put specific owners in danger, but the vast majority who took out loans after which faced an economic hardship will continue to have little to worry about from their bank right after losing a house. You will discover just too numerous complications, from serving the lawsuit, to collecting on it, to poor PR, for the banks to feel it really is worth the extra bother.

Sources:

1 http://activerain.com/blogsview/506776/Virginia-Deficiency-Judgement-Judgment

two http://floridaassetprotection.blogs.com/alperlaw/2008/07/deficiency-ju-1.html

3 http://banking.about.com/od/loans/a/deficiencyjudg.htm

4 http://www.citifinancial.com/glossary/defin/DeficiencyJudgment.htm

five http://seekingalpha.com/article/75938-fannie-mae-q1-2008-earnings-call-transcript

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